Common Core: Governor v. the People

The Louisiana Legislature, the State Board of Elementary and Secondary Education and the State Superintendent of Education have stood strong in support of the Common Core State Standards (CCSS) and the Partnership for Assessment of Readiness for College and Careers (PARCC) tests.

On June 6, after Gov. Jindal failed in his efforts to kill CCSS and PARCC during the legislative session, he stated, “It is time for the Department of Education to come up with a Plan B … I am committed to getting us out of PARCC, out of Common Core.”

The question is … does Jindal have the constitutional authority to unilaterally get the state out of Common Core and PARCC?

First, BESE has the constitutional authority to enact the standards and select the test.

BESE “shall supervise and control the public elementary and secondary schools … as provided by law.”

Second, the law clearly provides for CCSS and PARCC, and every attempt to change the law this session was defeated. The law states:

“Beginning with the 2014-2015 school year, standards-based assessments implemented by the State Board of Elementary and Secondary Education in English language arts and mathematics shall be based on nationally recognized content standards … Rigorous student achievement standards shall be set with reference to test scores of the same grade levels nationally.”

So, by what means could Jindal thwart this authority?

Educate Now! is skeptical that the governor can force BESE to drop Common Core and adopt new standards. Even if he convened a commission to write new standards, BESE would not have to adopt them. He would likely focus on eliminating the PARCC tests because Common Core standards without tests aligned to these standards would be pretty meaningless.

1. The Governor has the power of Executive Orders.

In case of an emergency, the governor has the power to suspend state law and Department of Education regulations if it “would in any way prevent, hinder, or delay necessary action in coping with the emergency.”

The governor could try and declare that implementation of CCSS and PARCC constitutes an emergency and suspend the applicable laws and policy and order BESE to not implement CCSS and PARCC.

BESE would very likely litigate this action, as it is hard to argue that an issue that has been publicly discussed and vetted for 4 years and on which there were numerous bills debated this session is now an “emergency” giving the governor this power.

2. He could try and use his Line Item Veto authority to cut the funding for the tests.

Educate Now! believes the funding for the tests is not a line item in the budget; it is part of a larger Department of Education budget, so it would be very hard to veto.

3. He has tremendous influence with the Division of Administration (DOA), and he could use DOA’s power over state contracts to derail the PARCC tests.

The Division of Administration is charged with determining whether Request for Proposals (RFPs) or state contracts issued by the various departments in state government are in compliance with the law.

The DOA could try and deny approval of the contract to purchase PARCC tests by just never getting around to approving it or by finding a reason that the contract is in violation of state law. Educate Now! can think of a number of ways that BESE and the Department of Education could circumvent this ploy by having the test purchased by some entity other than the Department of Education.

The DOA could require BESE and the Department of Education to competitively bid the testing contract. Since PARCC is not the only test that is based on “nationally recognized content standards,” it is within DOA’s rights to do this and reasonable if they decide to do so. This action will not get the state out of Common Core, but it could mean Louisiana would use a test other than PARCC, like Smarter Balance or ACT.

Educate Now! believes the governor will have a very hard time forcing the state out of Common Core. He could require BESE to competitively bid the test, but state law would still require that the test be aligned with “nationally recognized content standards.” If tries to use his executive powers to prevent implementation of Common Core and tests aligned to the standards, you can expect this issue to end up in the courts.

Groups urge Gov. Jindal to stick with Common CoreMore than three dozen business, education and civic groups are urging the governor to move forward with implementing all aspects of Common Core. They say any plans to bypass the legislature and the Department of Education to get rid of Common Core in Louisiana “would constitute executive overreach that violates every aspect of the spirit of the democratic process.” The groups include the Council for a Better Louisiana, Citizens for 1 Greater New Orleans, Greater New Orleans Inc., the Louisiana Association of Business and Industry, and Stand for Children Louisiana.

Jindal rejects bill to stall Common Core effectsThe governor vetoed a bill that would have given students and teachers an extra year (three instead of two) to prepare for new Common Core standards. Jindal said Common Core critics saw the legislation as “enshrining Louisiana’s participation in Common Core and PARCC.”